|Title||COMMUNICATIONS LEGISLATION AMENDMENT BILL (NO. 2) 2003
|Speaker||Bishop, Sen Mark
Senator MARK BISHOP (4:12 PM) âThe Communications Legislation Amendment Bill (No. 2) 2003 makes amendments to the Telecommunications Act 1997, the Australian Security Intelligence Organisation Act 1979 and the Administrative Decisions (Judicial Review) Act 1977. It strengthens the national security arrangements for Australia's telecommunications industry. This bill increases the power of the executive to exert control over Australia's telecommunications infrastructure.
Labor accepts that in our heightened security environment stronger national security provisions are required over these telecommunications facilities. While broadly supporting the bill we had some concerns with the fact that the bill applied to individuals. We were concerned that individuals' phones could be cut off under the bill. This week the government has responded to Labor's concerns. The government will now move amendments to remove those provisions. We are advised that the Democrats are also moving an amendment taking into account Labor's concerns in this regard. Labor will consider that amendment. Labor welcomes the change of heartâthe change of approachâby the government. We will support amendments removing individuals from the ambit of the bill. We will also support most of the bill.
The bill has two main components. First, the bill amends the Telecommunications Act 1997 to require the ACA, the Australian Communications Authority, to consult with the Attorney-General's Department before issuing a carrier licence. The Attorney-General, in consultation with the Prime Minister and the minister administering the Telecommunications Act, can direct the ACA to refuse a carrier licence on national security grounds. The grounds for refusing carrier licences are not limited under the Telecommunications Act but the ability to refuse to grant a licence on national security grounds is not provided for expressly. Labor supports these provisions as a sensible tightening of the national security arrangements applying to our carriers.
Second, the bill allows the Attorney-General to direct a person to prevent or cease the supply of a service for itself or any other person on national security grounds. This direction may be issued to individuals, groups or industry participants, where their activities are deemed to pose a risk. It is this reference to individuals that is now to be removed. The bill amends the ASIO Act to provide for appeal to the AAT against any adverse or qualified security assessment ASIO has provided to the Attorney-General. The Attorney-General, in turn, will be required to notify a person of an adverse security finding, except where such notification would be contrary to the interests of national security. However, the bill also amends the Administrative Decisions (Judicial Review) Act 1977 to exclude the same decision from judicial review under the act. Such national security decisions are not usually open to judicial review under the AD(JR) Act.
Certainly this is the case with the ASIO Act, the Intelligence Services Act, and the Telecommunications (Interception) Act. However, judicial review will also be available in both the Federal Court and the High Court. Given the government's proposed amendment to remove the reference to individuals, Labor no longer objects strongly to this provision. The bill clarifies the existing obligations of carriers and carriage service providers or CSPs. It introduces new obligations on carriers and CSPs, on data disclosure and on interception arrangements. Carriers and CSPs must provide all relevant information associated with interception warrants. This includes call durations and the time, date and location of calls, along with call content. This amendment further clarifies existing obligations and Labor supports it fully.
The bill updates and arguably loosens the definition of `senior officers' who can certify the disclosure by carriers and CSPs of call data. This will accommodate current law enforcement agency structures and classifications. The commissioners, deputy commissioners or CEOs of relevant agencies will be able to nominate most categories of senior officers. Labor has concerns with these amendments, which I will come back to later. The Telecommunications Act will be amended to ensure that all carriers and CSPs have an interception capability. Applications for exemptions from this requirement will be considered within 60 days, with a further interim extension facility if needed. Labor supports these amendments.
The current requirement for carriers and nominated CSPs to provide annual interception capability plans will be amended. These will now require statements about current and continued compliance with their interception obligations. This will ensure such plans are signed by or on behalf of the carrier or the CEO of the nominated CSP. The date for the lodgment of such plans will be changed from 1 January to 1 July to ensure compliance with lodgment dates. Labor also supports these technical amendments
Having made those supportive comments on the bill, I will now speak to Labor's main concern. Labor's key concern with the bill now centres on the definition of senior officers who will have the power to certify call data. The widespread access to call data by inappropriate persons acting under the guise of law enforcement has recently been exposed in the media. In June this year it was reported that Australia's police forces are using telephone taps at 27 times the rate of their US counterparts. It was reported that in Australia 2,514 court warrants were issued for telephone taps last financial year. It is suggested therefore that the need for this measure may be overstated.
We need to ensure that relatively junior officers do not inappropriately access call data. There have already been various media reports saying that relatively junior officers have sought to obtain such information for non law enforcement related purposes. Labor therefore does not support clauses 17 and 18 which widen the definition of senior officer for the purposes of certifying the disclosure of call data. The other amendment Labor will move at the committee stage is for the provision of a five-year sunset clause in the bill. This will also provide for a review of the legislation four years after assent. While the bill's general provisions are justified under the current security environment, a sunset clause would allow the bill's continued relevance to be reviewed. It is important that the bill be considered in the light of experience.
May I assure the Senate that Labor wants to improve the national security arrangements in our telecommunications industries. We have no desire to obstruct the great majority of the important amendments contained in this bill. We want our national security environment to be robust and responsive to the terrible threat of global terrorism against innocent civilians. But we need to balance the need to strengthen our national security with the need to preserve our traditional rights. Labor supports absolutely the government's moves to tighten the national security checks against telecommunications carriers but we also consider telecommunications services as essential services. That is why we are pleased that the government has relented on the extension of this bill to the rights of individuals, who are without adequate appeal rights. If left intact, this would have contradicted the government's own majority report and the evidence given to the committee by the Attorney-General's Department.
Labor is pleased the government has seen the light and has supported our original position. We welcome the fact that the bill no longer applies to individuals. We give credit to the government for conceding in the interests of good public policy. In conclusion, Labor supports the government's initiatives to improve national security arrangements in our telecommunications sector. We will not ultimately seek to defeat this bill, but we ask that the government give our amendments due and careful consideration.